This spring, in a lawsuit brought by American Oversight, a federal judge rejected a Trump administration argument for withholding communications with Congress about Affordable Care Act sabotage. Now, the administration is appealing that decision.
In early 2017, as the administration and congressional Republicans made what was ultimately a failed attempt to “repeal and replace” the ACA, then–Office of Management and Budget Director Mick Mulvaney reportedly sent a secret letter to right-wing Freedom Caucus members detailing executive branch options for weakening the law. American Oversight filed Freedom of Information Act requests with OMB and the Department of Health and Human Services for communications between those agencies and Congress about such potential administrative actions.
American Oversight took the administration to court to force the release of the records, including the Freedom Caucus letter. But the materials produced by the agencies contained heavy redactions of information that they argued fell under the exemption for “inter-agency or intra-agency” deliberations — even though Congress is, of course, not an “agency.”
HHS and OMB’s argument relied on what is known as the “consultant corollary,” which allows outside consultant to be considered as acting “akin to an agency employee.” In April, Judge Amy Berman Jackson rejected this argument — the exemption could only apply to outside consultants acting as neutral parties, and members of Congress are unable to stand in the shoes of agency employees because they are advancing their own (or their constituents’) interests.
The administration’s efforts to conceal the substance of these communications with Congress has now extended to appealing Jackson’s decision. The argument for congressional communications to be considered as falling under the “consultant corollary” would dramatically expand the scope of the exemption, giving the government an argument to support withholding communications with virtually any outside interest group or lobbyist.